RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01470
BRANCH OF SERVICE:  Army	BOARD DATE:  20141002
SEPARATION DATE:  20041206 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (52D/Generator Mechanic) medically separated for a back condition and asthma.  The two conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3/L3/H3 profile and referred for a Medical Evaluation Board (MEB).  The back and asthma conditions, characterized as “chronic low back pain (LBP)” and “asthma,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded hearing loss as medically acceptable.  The Informal PEB adjudicated “chronic low back pain, without neurologic abnormality” and “asthma, existed prior to service (EPTS)” as unfitting, rated 10% and ---% respectively, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  With respect to the asthma, the PEB stated, “there is compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated beyond natural progression by such service.  Asthma diagnosed in 2002, unrelated to military service.  Symptomatic through normal progression after activation.”  The PEB further adjudicated the hearing loss as not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “Asthma, degenertive disc disease disc bulge.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting back and asthma conditions are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20041104	VA - (Same and 1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	

Chronic Low Back Pain, w/o Neurologic Abnormality
	5299-5237	10%	Lumbar Disc Bulge L4-L5	5237	40%	20050110	
			Peripheral Neuropathy, LLE	8520	10%	20050110	
			Peripheral Neuropathy, RLE	8520	10%	20050110	
Asthma	6602	---%	Mild Seasonal Asthma	NSC		20041227	
Other x 1 (Not in Scope)	Other x 4	20041227	
Combined:  10%	Combined:  50%*	
Derived from VA Rating Decision (VARD) dated 20050226 (most proximate to date of separation)
Increased to 60% on 20050110 for bilateral factor of 1.9% for codes 8520

ANALYSIS SUMMARY:

Chronic Low Back Pain without Neurologic Abnormality Condition.  The narrative summary (NARSUM) notes the CI injured his back while training in June 2003.  While loading a truck he felt a sudden spasm.  He was treated conservatively and did well until mobilization which exacerbated his low back symptoms.  Magnetic resonance imaging of the back showed degenerative disc disease of the thoracolumbar spine, without spinal canal stenosis or nerve impingement.  At the MEB examination performed on 9 September 2004 (approximately 3 months prior to separation), the CI reported that he was still debating his treatment options.  Notes in the service treatment record (STR) indicate he did have lumbar nerve blocks in September 2004 for right side back pain.  The MEB physical exam noted tenderness to palpation of the thoracolumbar spine with muscle spasm present.  Thoracolumbar (TL) range-of-motion (ROM) noted full flexion, extension and combined ROM with pain and tightness.  Reflexes were normal and straight leg raise testing for nerve related symptoms was negative bilaterally.  There were no incapacitating episodes documented in the STR.

At the VA Compensation and Pension (C&P) spine examination performed on 10 January 2005 (a month after separation), CI reported the back injection helped for a few weeks.  He reported that the pain did not radiate, but was aggravated by sitting more than 30 minutes.  The VA examination noted back ROM of flexion 25 degrees without pain and 45 degrees with pain (normal 90 degrees) and extension of 15 degrees (normal 30 degrees) without pain and 20 degrees with pain.  Combined ROM was 185 degrees.  The examiner noted ankle reflexes were absent bilaterally with evidence of a stocking pattern sensory deficit of the lower extremities.  Straight leg raise testing was negative bilaterally.  The examiner stated that there was no evidence of radiculopathy or neurological dysfunction related to the lumbar spine, but did find evidence of an unrelated peripheral neuropathy.  A VA C&P general examination performed on 27 December 2004 noted the CI had a normal gait.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, coded 5299-5237 (analogous to lumbosacral strain).  The VA rated the back condition at 40%, also coded 5237.  The Board noted the discrepancy between the TL ROM noted at the MEB examination, which was normal, and at the VA C&P examination a month after separation, which was moderately limited.  In assigning probative value to these conflicting examinations, the Board notes that the MEB measurements are consistent with the pathology in evidence based upon imaging studies and clinical findings.  There is not a reasonable accounting for progressively impaired ROM in the 3 month interval between the two examinations.  There was no additional injury or exacerbation reported, no muscle spasm was noted at the C&P examination and a normal gait was noted at the C&P general examination, 2 weeks prior to the spine examination.  Therefore, based on the evidence, member consensus was that the greater probative value should be assigned to the MEB evaluation.  The Board therefore agreed the evidence supported the 10% rating according to the VASRD General Formula for Rating the Spine based upon ROM without muscle spasm or guarding severe enough to cause an abnormal spinal contour or gait and there was no evidence of incapacitating episodes due to the back condition or peripheral nerve impairment to provide for higher or additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic LBP condition.

Asthma Condition.  The NARSUM notes the CI had a history of asthma that was diagnosed in 2002 while not on active duty.  He was initially diagnosed in January 2003 with exercise induced asthma with reversible airway dysfunction noted on pulmonary function testing before and after bronchodilator (BD) use.  He was provided a BD inhaler to use before exercise.  After being mobilized in January 2004 the CI was not cleared for deployment due to the asthma condition and had a pulmonary evaluation on 11 May 2004.  The pulmonary specialist noted that the pulmonary function testing and methacholine challenge testing performed on 26 April 2004 were normal, but the tests were not diagnostic because they were performed while the CI was using a BD inhaler and a steroid containing inhaler twice daily.  The pulmonary specialist diagnosed allergic asthma and recommended continued monitoring, with continued use of the same medications.  Following the asthma evaluation the CI was recommended for a MEB.  At the MEB examination performed on 4 October 2004 (approximately 2 months prior to separation), the CI reported continued asthma exacerbations with shortness of breath (SOB) and wheezing and courses of oral steroids.  He reported current use of Advair twice daily and a BD inhaler three to four times per day.  At the MEB examination he was currently on oral steroids as well.  The MEB physical exam noted a normal examination of the lungs.  Chest X-ray images obtained on 7 July 2004 was normal.  A note in the STR performed on 17 October 2004 indicated the CI reported using only a BD inhaler at the time of an emergency room visit for an unrelated problem.

At the VA C&P exam performed 3 weeks after separation, the CI reported asthma for the past 3 years that starts around pollen season with SOB and coughing, with episodes of treatment with steroids and antibiotics.  He reported being on a BD inhaler at the exam and that he had been to the emergency room, but had never been hospitalized for asthma.  The VA examination of the chest was normal and the VA examiner diagnosed mild seasonal asthma.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the asthma condition, coded 6602 (asthma) as EPTS, not service aggravated, and therefore, did not provide a disability rating.  The VA did not service-connect the asthma condition, citing no evidence of permanent service aggravation.  The evidence in the record supports that the CI was diagnosed with mild asthma prior to his activation.  The Board engaged in lengthy deliberations regarding whether the EPTS asthma condition was permanently service aggravated by active duty military service.  By the CI’s own report there were seasonal exacerbations of asthma before and during active duty, but there was no documented difference in record in the frequency or intensity of symptoms, or medications required for management.  The Board acknowledges that IAW DoDI 1332.38 a presumption of service aggravation may only be overcome by clear and unmistakable evidence that the natural progression of a pre-existing condition was unaltered by any consequence of military service and unanimously agreed that in this case the evidence met that standard.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB determination that the asthma condition was EPTS and not service aggravated and, therefore, could not be recommended for additional disability rating.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the asthma condition, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130916, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20150004317 (PD201301470)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         
CF: 
(  ) DoD PDBR
(  ) DVA